Vouchers ascendant?

The heartening (and unanimous) decision by the Indiana Supreme Court on Tuesday to uphold that state’s school-voucher program further undermines a dominant but false narrative in the academy, to the effect that school vouchers are a distraction with little serious political support. The opinion is notable for several reasons, and I expect to post again about some of them. Here I note only two. First, the Indiana program makes enormous numbers of children voucher-eligible. Second, the Indiana court’s analysis makes some interesting and important moves with respect to both its constitution’s religion and education clauses.

Eligibility first. Instead of restricting voucher eligibility to very poor children, or children in distressed urban centers, Indiana makes voucher-eligible every child whose household earns no more than 150% of the amount required for eligibility for federal free or-reduced price lunches. In Indiana these annual amounts are $40,793 for a household of four, $47,712 for a household of five, and $54,631 for a household of six. Multiply these numbers by 1.5 and you get $61,190, $71,568, and $81,947 respectively. Median household income in Indiana is $48,393. That’s a lot of potential voucher customers.

Moreover, the voucher is relatively generous; and this coming year, the cap on the number of vouchers that can be issued will expire. Further, schools’ ability to participate in the voucher program depends on no discretionary decision by state authority; as long as a private school meets a set of statutory requirements, it can cash a voucher. So not only did the Indiana legislature give relatively wide scope to voucher demand, it made it hard for administrative authority to cut that demand back. Something like a market is likely to emerge.

It is therefore a bit ironic that the court’s opinion is so uninterested in markets. This makes it unlike Zelman v. Simmons-Harris, the 2002 US Supreme Court voucher case that many commentators lauded for its attention to the effects the Ohio voucher program would have upon markets for schooling. The Indiana Court, by contrast, treats the economics as irrelevant. It rejects the claim that vouchers interfere with the state’s duty to create “a general and uniform system of Common Schools” on the grounds that that the legislature has a separate power to encourage education separate from its duty to sponsor public schools — and the voucher program did not alter the operation of the public school system. The Court expresses no interest in the likelihood that a decline in demand for traditional public schools will result from subsidies for their economic substitute (private schools), and that such a decline could be large enough to affect the operation of the common schools. What matters, says the court, is that the free and common public school system remains available for all who want it. Why they might want or not want it is up to them.

With respect to the religion clauses, Indiana adopts a distinction that appears to be similar, if not identical, to the one Justice O’Connor drew in Mitchell v. Helms, where she repurposed an old distinction between “direct” and “indirect” support of religious schools. The Indiana Court says that parents and families, which choose whether to use a voucher at all and where to send it, are the direct beneficiaries of a voucher; the schools, providing services in response to parents’ choices, are but indirect beneficiaries. The Indiana Constitution’s religion clauses, says the court, prohibit the expenditure of public funds only for direct benefits to religious institutions. Again, no interest in the fact that the formalist direct/indirect distinction is economically meaningless or in the ease with which a state can recharacterize direct aid as indirect aid without substantively changing its program.

Sam’s request for citations is most welcome. I am traveling this week and away from my office bookshelves, but here are a couple standouts on the law-review side:

Martha Minow, Confronting the Seduction of Choice: Law, Education, and American Pluralism, 120 YALE L.J. 814, 832-33 (2011) (citations omitted): “[T]he decision in Zelman produced no mass movement for school vouchers. Indeed, despite the constitutional green light for school vouchers, the political movement for them has essentially stalled. Despite enormous political efforts and dramatic legal success, the movement for vouchers halted in 2008–right at the feet of suburban parents who liked their public schools. Disillusionment with privatization after the Iraq War, Hurricane Katrina, and the stock market collapse may have contributed to declining interest in school vouchers as private market-based solutions lost cachet. Voters defeated five state school choice referenda, and none of the results were close. By 2008, public vouchers to support private schooling receded from the public stage, leaving entrepreneurial school reformers engaged with charter, magnet, and pilot schools, as well as other forms of school choice, within public school systems.”

James Forman, Jr., The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics, 54 UCLA L. REV. 547, 549-50 (2007) (citations omitted): “Zelman was thought to be important because many assumed that once the Court held vouchers to be constitutional, states would rush to implement such plans. For many, the uncertain legality of school vouchers had been a reason not to institute voucher programs…. Yet, in the years since Zelman, school vouchers have made little political headway. They have been proposed in a variety of cities and states, but have overwhelmingly been rejected. This is just as true in states run by Republicans as in those led by Democrats.”

What exactly is heartening about a decision that allows diverting taxpayer dollars from secular public schools to religious schools, even for students who are not in failing public schools? Is there any reason to believe that Indiana will avoid the educational problems that afflict religious schools in states like Texas and Louisiana?

I take the author supports the idea that voucher programs are legitimate and that it can be good public policy to use them in this fashion, including for good non-public schools.

Now, if you are against this sort of thing, including on 1A grounds (though it seems to meet current doctrine), that would be something else. I am sympathetic to the dissents in Zelman, but “educational problems” probably afflict various types of non-public schools, while some provide good education (as some religions support SSM, some don’t), so would not focus on that alone.